1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

KELLY GAINOR, : 

 : 

 Plaintiff, : 

 : Case No. 2:11-CV-561 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

WORTHINGTON CITY : 

SCHOOLS, et al., : Magistrate Judge Abel 

 : 

 Defendants. : 

OPINION AND ORDER 

I. INTRODUCTION 

This matter is before the Court on the Defendants’ Motion for Summary Judgment. 

Plaintiff, through her Complaint and Response in Opposition, brings the claims of Retaliatory 

Conduct pursuant to the ADA, the Rehabilitation Act, the IDEA, O.R.C. § 4112 “and other Ohio 

and Federal common and statutory law,” and Intentional Infliction of Emotional Distress. For 

the reasons set forth herein, Defendants’ motion is GRANTED. 

II. BACKGROUND

A. Factual Background 

 Kelly Gainor (“Gainor” or “Plaintiff”) brings this action against Worthington City 

Schools and Worthington School District Human Resources Director, Jeanne Paliotto 

(“Paliotto”), (collectively “Defendants”) for alleged violations of the Americans with Disabilities 

Act, the Rehabilitation Act, and the Ohio Revised Code, as well as for intentional infliction of 

emotional distress, stemming from Gainor’s employment in the Worthington School District 

(“WSD” or the “District”). 

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 Gainor began working in the District in 2003. After working in the food service 

department for one year, Gainor moved into a position as a teaching assistant at Bluffsview 

Elementary School, where she remained until 2008. During the 2007-2008 school year, Gainor, 

whose autistic son is a student in the District, became increasingly concerned about her son’s 

Individual Education Program (“IEP”). On April 22, 2008, Gainor filed the first of 

approximately six complaints regarding her son’s IEP with the Ohio Department of Education 

(“ODE”).1 Human Resources Assistant Teresa Gresh (“Gresh”), Paliotto’s assistant, was aware 

of the filings, and provided the relevant paperwork to Paliotto. 

Following a meeting with her son’s IEP team on October 20, 2008, Gainor filed another 

complaint with the ODE on November 4, 2008. In response to Gainor’s complaints, and the 

complaints of other parents similarly affected, the ODE conducted an audit and investigation of 

the District. Paliotto was not involved in the investigation. The investigation resulted in 

corrective action through relevant District training. 

At the beginning of the 2008-2009 school year, Gainor started a new job as a special 

education assistant at Worthington Kilbourne High School (“WKHS”). This was a position for 

which Gainor applied, interviewed, and subsequently accepted, with the knowledge that it 

involved a Behavior Learning Center (“BLC”).2 At WKHS, Gainor reported to Assistant 

Principal Ken Nally (“Nally”). Nally was aware that Gainor had two sons in the school district, 

but did not, as Plaintiff alleges, know about her son’s autism.3

 As early as one week into 

                                                            

1

 When asked about the number of complaints filed with the ODE regarding her son’s IEP, Gainor replied, “At the 

time there might have been tow, there might have been more...I’m not sure. I’ve filed numerous.... I think I may 

have filed six, five or six.” (Gainor Dep., Doc. 18 at 224-25). 2

 Based on the information provided by the parties, it seems that a BLC encompasses students with various levels of 

behavioral issues, ranging from mild to more aggressive behaviors such as hitting, biting, etc. 3

 In his deposition, Nally first stated that Gainor told him that her son was autistic during her interview for the 

WKHS position, but immediately backtracks, stating, “I know that she did have experience with special education in 

her work history, and I don’t know whether she said that her son had autism or not. I can’t recall.” (Nally Dep., 

Doc. 19-12 at 75).  

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Gainor’s employment at WKHS, Nally was made aware of the ODE filing by the Department 

Chair for Special Education, Ellen Clark (“Clark”). According to Nally, Clark was particularly 

nervous about the data sheets Gainor was keeping for the intervention specialists in the 

department to collect behavioral information. Nally also spoke with the Director of Special 

Education, Lynne Hamelberg, regarding Gainor’s ODE filings and related actions. 

During that school year, Nally disciplined Gainor for various issues. Nally asked Gainor 

not to speak to a specific parent during the school hours. Gainor alleges that Nally asked her not 

to speak to parents of special education students, in general, while Nally contends that his 

request was limited to the particular parent involved in the relevant discussion with Gainor. In 

addition, Nally, per Gainor’s request,4

 investigated the claim that WKHS had directed students to 

monitor Gainor and to report on her behavior. On January 13, 2009, Gainor got into an 

altercation with one of her students, allegedly calling her a “fucking retard,” and telling her to 

“drop out of school.” Following an investigation, Nally decided that Gainor had not called the 

student a “fucking retard,” and that Gainor’s comment telling the student to drop out of school 

was taken out of context. 

On February 12, 2009, the District conducted a disciplinary hearing with Gainor, which 

covered the following charges: 1) leaving work on January 15, 2009 at 12:30 p.m. without 

reporting off to her supervisor; 2) failing to perform her functions as a special education assistant 

due to Gainor’s use of the classroom computer for personal matters; and 3) concern about 

Gainor’s professional conduct, interaction with students, and choice of language. On February 

18, 2009, Gainor filed a harassment complaint with the District, stating that any and all 

                                                            

4

 Nally’s deposition states that during one of her disciplinary hearings, Gainor asked that it be investigated, but later 

Nally does not clarify when counsel asks about his conversation with Paliotto regarding that investigation. (Nally 

Dep. at 9, 70). It may be the case that Paliotto directed the first investigation, and Gainor, during her disciplinary 

hearing, asked that the specific students be interviewed. 

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disciplinary actions taken against her were the result of retaliation for her ODE filings, speaking 

with local newspapers about her experience in the District, documenting incidents through the 

data sheets, and advocating for her son. On March 3, 2009, Gainor received a letter from 

Paliotto, stating that as a result of the disciplinary hearing, Gainor would be suspended for one 

day. 

On May 13, 2009, the District held a meeting with Gainor for the purpose of talking 

about her concerns and clarifying the District’s expectations. On September 17 2009,5 the 

District conducted another disciplinary hearing, this time in regard to allegations of Gainor’s 

insubordination and failure to follow work rules and procedures. As a result of this disciplinary 

hearing, Gainor was suspended without pay on October 12 and 13, 2009. On October 6, 2009, 

the same day she received a letter from Paliotto with the disciplinary hearing’s outcome, Gainor 

filed a complaint with the Ohio Civil Rights Commission (“OCRC”), checking the boxes marked 

disability, retaliation, and reasonable accommodation. 

At the beginning of the 2009-2010 school year, the District transferred Gainor to Granby 

Elementary school to work in another BLC. Gainor’s new position required the same hours and 

provided the same pay as her job at WKHS. Gainor believed that working in another BLC 

would be problematic,6 and told Gresh that she could not accept the new position. Paliotto 

subsequently offered Gainor a position at Worthington Kilbourne Middle School (“WKMS”) as 

an intervention specialist, working at the same pay rate for seven hours a day, which Gainor 

accepted. Following three instances of tardiness without notification, the District held a 

disciplinary hearing with Gainor, resulting in a letter of direction clarifying work rules and 

procedures. 

                                                            

5

 This hearing was originally scheduled for July 6, 2009. 

6

 Gainor originally did not want the position because of her alleged disability, but has since dropped the claim. This 

is discussed further in section IV.

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In May 2010, Gainor received notice that, due to budget cuts, lack of funds, and lower 

enrollment, her job might be in jeopardy. The District maintained that they would notify her of 

any changes pursuant to the “bumping rights” in her Collective Bargaining Agreement. On June 

15, 2010, Gainor received notice that her position had, in fact, been eliminated, and that 

effective June 30, 2010, she was reassigned to the position of intervention specialist at 

Worthingway Middle School (“WMS”) for the 2010-2011 school year.7 Her new position 

provided the same pay rate, but was six hours per day rather than seven. Gainor did not file any 

grievance in response to her new position. It is undisputed that such a position change is within 

the right of the District. 

In June 2010, Gainor applied and interviewed for an instructional assistant position and 

an intervention assistant position. In November 2010, she applied and interviewed for another 

instructional assistant position. In March 2011, Gainor applied for two different summer school 

positions, a pre-school position and a special education assistant. Though Gainor applied late, 

Gresh processed her application. She did not receive either position, and is currently employed 

at WMS as an intervention specialist. 

B. Procedural History 

Plaintiff filed this action on June 27, 2011, asserting the following claims against 

Defendants: (I) Disability Discrimination pursuant to the Americans with Disabilities Act 

(“ADA”), O.R.C. § 4112, and the Rehabilitation Act of 1973 (“RHA”); (II) Retaliatory Conduct 

pursuant to the ADA, the RHA, O.R.C. § 4112 “and other Ohio and Federal common and 

statutory law”; and (III) Intentional Infliction of Emotional Distress. (Compl., Doc. 1, 4-8.) 

                                                            

7

 Though none of the relevant documents say so, it seems that the intervention specialist position was a BLC 

position, which is why Gainor continued to look for other employment opportunities after receiving that job. 

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On December 28, 2012, Defendants moved for summary judgment on all claims. (Doc. 

15.) In her responsive briefing, Plaintiff conceded that “it does not appear that she was the 

victim of disability discrimination” and, therefore, stated that she does not oppose Defendants’ 

motion to dismiss Count I of her complaint. (Doc. 19 at 2.) Plaintiff does, however, oppose 

Defendants’ motion with respect to Counts II and III of her complaint. In addition, Plaintiff 

raised a new argument of retaliation under the Individuals with Disabilities Education Act 

(“IDEA”). (Doc. 19 at 10-11). 

Based on Plaintiff’s addition of the IDEA retaliation claim, Defendants requested leave to 

file an amended motion for summary judgment, which the Court granted. (Doc. 20; Doc. 23). 

On October 4, 2013, Defendants again moved for summary judgment on Counts II and III. (Doc. 

24). Oral argument was held, and this matter is, therefore, ripe for review. 

III. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

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Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986)). 

IV. LAW AND ANALYSIS 

A. Disability Discrimination and Harassment (Count I) 

In her response to Defendants’ original motion for summary judgment, as well as her 

response to Defendants’ amended motion for summary judgment, Plaintiff concedes this count. 

(Doc. 19 at 2; Doc. 25 at 2). Due to Plaintiff’s concession, Defendants argue that they are 

entitled to summary judgment on this claim. (Doc. 24 at 9). This Court agrees. Therefore, 

Defendant’s Motion for Summary Judgment on Count I is GRANTED. 

B. Retaliation (Count II) 

1. Exhaustion of Remedies under Federal Law 

 Defendants argue that Plaintiff failed to bring her claims under the ADA, Civil Rights 

Act,8

 and RHA within the proper two-year statute of limitations. (Doc. 24 at 10). In response, 

Plaintiff states that she received her right-to-sue letter from the Equal Employment Opportunity 

                                                            

8

 Defendants include the Civil Rights Act, which is not mentioned in Plaintiff’s Complaint, nor in her Response in 

Opposition. 

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Commission (“EEOC”) “relative to her retaliation claim” on April 6, 2011, and properly filed 

suit within the applicable 90-day period. (Doc. 25 at 18). Plaintiff brings her claim of retaliation 

under the ADA, RHA, and ORC § 4112. 

Plaintiff does not specifically identify, however, under which title of the ADA she brings 

her claim. The Court, therefore, must infer the Title she intends based on the statute of 

limitations and exhaustion requirements she invokes. As this Court has previously recognized, 

Title I, Title II, and Title III of the ADA each have different statutes of limitations. Bennett v. 

Bd. of Educ. of Washington Cnty. Joint Vocational Sch. Dist., No. 08-CV-663, 2010 WL 

3910364, at *3 (S.D. Ohio Oct. 4, 2010). A claim brought under Title II or Title III does not 

have an administrative-exhaustion requirement, and courts have used relevant state law to 

determine the proper statute of limitations for such claims. Id. (citing Bogovich v. Sandoval, 189 

F. 3d 999, 1002 (9th Cir. 1999); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 

(2d Cir. 2007)). Conversely, claims brought under Title I must meet an exhaustion requirement 

before any relevant claims are brought to court.9

 Id.

Exhaustion of administrative remedies requires that a plaintiff: “file an EEOC charge 

within 180 days of the alleged unlawful employment practice or, if the plaintiff has instituted 

proceedings with a state or local agency, within 300 days.10 Once the EEOC dismisses the 

charge and issues a right-to-sue letter, the plaintiff has 90 days to file a civil action.” Williams v. 

Nw. Airlines, Inc., 53 F. App'x 350, 352 (6th Cir. 2002) (citing 42 U.S.C. § 2000e-5; 42 U.S.C. § 

                                                            

9

 In Bennett, this Court noted: “This administrative-exhaustion requirement is the result of Title I’s incorporation of 

42 U.S.C. § 2000e—5, a provision of Title VII of the Civil Rights Act of 1964 which requires such administrative 

exhaustion.” Bennett, 2010 WL 3910364 at *3. 10 The 300-day period starts to run when the employee “is aware or reasonably should be aware” of the allegedly 

unlawful employment action. Hout v. City of Mansfield, 550 F. Supp. 2d 701, 718 (N.D. Ohio 2008) (citing Amini 

v. Oberlin College, 259 F.3d 493, 498–99 (6th Cir.2001)). 

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2000e-5(f)(1)); see also Granderson v. Univ. of Michigan, 211 F. App'x 398, 401 (6th Cir. 

2006). 

As noted, Plaintiff cites the 90-day period in which to bring her suit under federal law, a 

requirement that is only mandated by Title I of the ADA. By implication, Plaintiff has 

acknowledged that her claim is brought under Title I of the ADA; therefore, her claim requires 

exhaustion. Similarly, the RHA requires exhaustion of administrative remedies: “Under section 

1415(I) [of the IDEA], a plaintiff must exhaust applicable IDEA remedies as a prerequisite to 

bringing a [RHA] claim, even where plaintiff has no intention of bringing an IDEA claim.” B.H. 

v. Portage Pub. Sch. Bd. of Educ., No. 1:08-CV-293, 2009 WL 277051, at *3 (W.D. Mich. Feb. 

2, 2009). Because exhaustion of administrative remedies is required for claims brought under 

the ADA and the RHA, the Court will address them simultaneously.11 

In order to determine if Plaintiff has met the exhaustion requirement, the relevant facts 

must be applied to the exhaustion timeline. Gainor’s first disciplinary hearing took place on 

February 12, 2009, and resulted in her March 3, 2009 one-day suspension without pay. On 

September 17, 2009, the District held another disciplinary hearing with Gainor, which resulted in 

her October 12 and 13, 2009 suspension without pay. Gainor filed her charge with the OCRC on 

October 6, 2009, which allegedly resulted in a right-to-sue letter received on April 6, 2011. 

Initially, it seems that Plaintiff may have validly exhausted her administrative remedies. She was 

first disciplined on March 3, 2009, and filed her OCRC charge on October 6, 2009. Since she 

instituted proceedings with the OCRC, a state agency, she had 300 days in which to file her 

claim. Gainor filed her OCRC claim within 217 days of the March 3 suspension, thereby falling 

within the 300-day time limit. 

                                                            

11 An analysis of Plaintiff’s claims brought under the IDEA is addressed on page 10, infra. 

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Though Plaintiff met the first part of the exhaustion requirement, she did not meet the 

right-to-sue letter requirement, as she has never produced the necessary letter. Plaintiff has had 

at least three opportunities to file the proper right-to-sue letter: (1) upon filing of her Response in 

Opposition (Doc. 19); (2) as part of the Motion for Leave to File EEOC Right to Sue Letter 

(Doc. 27).; (3) and in the Supplemental Memorandum Supporting Motion for Leave to File 

EEOC Right to Sue Letter (Doc. 29). Plaintiff filed a right-to-sue letter that is dated April 6, 

2011, but, as Defendants accurately point out, the charge number listed on the October OCRC 

charge and the charge number listed on the EEOC right-to-sue letter are not the same, nor does 

Plaintiff give any indication that the charge numbers are related. (Doc. 25-4; Doc. 27-1). 

Furthermore, even if the documents are directly related, the Court has no way of knowing, as 

Plaintiff has failed to provide any documentary history linking the two forms. Thus, Plaintiff’s 

failure to provide any evidence that her right-to-sue letter is related to the EEOC letter at issue 

undermines her claim. She has not, therefore, discharged her burden to show that she exhausted 

her administrative remedies. See Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 

2002). 

 Plaintiff also contends that she has exhausted her administrative remedies under the 

IDEA, thereby validly bringing her claim before this Court, citing the complaints filed with the 

ODE. (Doc. 25 at 19). Plaintiff states that the “ODE acknowledged and investigated those 

complaints pursuant to the dictates of the IDEA, and that they reached a resolution to the 

complaints.” (Id.). As referenced above, the IDEA requires plaintiffs to exhaust their 

administrative remedies before bringing a federal suit.12 In Covington v. Knox County School 

                                                            

12 The IDEA provides: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and 

remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et 

seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the 

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System, the Sixth Circuit stated that, under the IDEA, plaintiffs exhaustion of remedies is 

required in IDEA suits. 205 F.3d 912, 915 (6th Cir. 2000). The Court clarified that exhaustion 

under the IDEA is usually, but not always required, particularly in cases where it would be futile 

or inadequate to protect the plaintiff’s rights, or if the plaintiff was not given proper notice of his 

or her procedural rights under the IDEA. Id. at 917. The Court in Horen v. Board of Eduation of 

City of Toledo Public School District, found that the IDEA exhaustion requirement “applies 

equally to a § 504 [RHA] claim.” 655 F. Supp. 2d 794, 802-03 (N.D. Ohio 2009) (internal 

citations omitted). Furthermore, the Horen Court stated that exhaustion of remedies under the 

IDEA applies to claims of retaliation. Id. 

It is undisputed that Plaintiff filed complaints with the ODE, which contributed to the 

audit and subsequent corrective action taken within the District. While the ODE complaints and 

their ultimate resolution provide factual background to Gainor’s claim, they do not function in 

the manner she argues. They in no way have an effect on the exhaustion of remedies, because 

they did not occur within the relevant 300-day period following the discipline. Therefore, 

Plaintiff’s IDEA exhaustion of remedies claim does not impact her claims under the ADA or 

RHA, but serves instead as part of the factual basis on which her claims are brought. 

Unlike the ADA, RHA, and the IDEA, ORC § 4112 does not have an exhaustion of 

remedies requirement. Arnold v. City of Columbus, No. 2:08-CV-262, 2011 WL 1311892, at *10 

(S.D. Ohio Mar. 31, 2011) (citing Harrison v. City of Akron, 43 F. App'x 903, 905 (6th 

Cir.2002)). In addition, ORC § 4112 has a six-year statute of limitations for retaliation claims. 

Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022, at *6 (S.D. Ohio Mar. 

                                                                                                                                                                                               

rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is 

also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same 

extent as would be required had the action been brought under this subchapter.” 20 U.S.C.A. § 1415. See also

Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000).

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11, 2011) (citing Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 638 

N.E.2d 991, 992 (Ohio 1994)). Therefore, Plaintiff’s state law claim falls within the statute of 

limitations under Ohio law. 

a. Minority Tolling Statute

In a last ditch effort to save her claim, Plaintiff proffers that the relevant statute of 

limitations was tolled under Ohio’s minority tolling statute. (Doc. 25 at 18-19). Though it is not 

clearly stated, Plaintiff seems to allege that, even if her retaliation claim is barred by a two-year 

statute of limitations under the ADA, Ohio’s minority tolling statute would make her claim 

timely brought. There are, however, two critical issues with Plaintiff’s claim. 

First, Plaintiff improperly applies a two-year statute of limitations to her Title I claim. As 

noted in Sec. IV(B)(1), supra, a Title I claim under the ADA has a 300-day statute of limitations 

when it is brought before a state or local agency. In assessing the applicability of state law 

tolling statutes to federal claims, the Sixth Circuit has articulated: “[w]hen the statute of 

limitations is borrowed from state law, so too are the state’s tolling provisions, except when they 

are ‘inconsistent with the federal policy underlying the cause of action under consideration.’” 

Bishop v. Children's Ctr. for Developmental Enrichment, 618 F.3d 533, 537 (6th Cir. 2010) 

(quoting Bd. of Regents v. Tomanio, 446 U.S. 478, 485 (1980)). Due to the ADA’s incorporation 

of Title VII’s statute of limitations, 42 U.S.C. § 2000e-5(e)(1), which set out the 180 day and 300 

day statutes of limitation, an application of Ohio’s minority tolling statute would be improper. 

Second, Plaintiff misapplies the tolling statute to her claim. Under Ohio’s minority 

tolling statute, when “the minor plaintiff's claims are joint and inseparable with the claims of 

other parties, they too can benefit from his disability and bring their claims within the statutory 

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period after his disability ends.” Bishop v. Children's Ctr. for Developmental Enrichment, 618 

F.3d 533, 537 (6th Cir. 2010). Courts have recognized a third-party’s claims under minority 

tolling, but the claims must be joint and inseparable from the claims of the disabled party. Id. at 

538 (quoting Fehrenbach v. O'Malley, 164 Ohio App.3d 80, 841 N.E.2d 350, 366 (2005)). 

Plaintiff states that her claims are inseparable from her son’s, because he was not 18 years old at 

the time this action was brought, thereby allowing her to benefit from a tolled statute of 

limitations. Gainor’s minor son has never been a party to this action. Minority tolling is, 

therefore, inapplicable to this case.

Because Plaintiff has failed to demonstrate that she met the exhaustion of remedies 

required under the ADA and the RHA, Defendant’s Motion for Summary Judgment on Count II 

is GRANTED. 

2. McDonnell Douglas Framework 

Even if Plaintiff had properly exhausted the administrative remedies under the ADA and 

RHA, her retaliation claim would still fail. Plaintiff alleges that Defendants’ retaliated against 

her based on advocacy on her behalf, and her son’s behalf, thereby violating her rights under the 

ADA, § 12101 et seq., the RHA, 29 U.S.C. § 701 et seq., the IDEA, 20 U.S.C. § 1400, O.R.C. § 

4112 “and other Ohio and Federal common and statutory law.” Based on the facts, it is clear that 

Plaintiff does not meet the prima facie case for retaliation. 

The framework applied in reviewing retaliation claims under the RHA and the ADA is 

the familiar McDonnell Douglas burden-shifting framework. Gribcheck v. Runyon, 245 F.3d 

547, 550 (6th Cir. 2001) (applying McDonnell Douglas to RHA retaliation claim); Barrett v. 

Lucent Technologies, Inc., 36 F. App’x 835, 840 (6th Cir. June 6, 2002) (“Retaliation claims are 

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treated the same whether brought under the ADA or Title VII.”) (citing Penny v. UPS, 128 F.3d 

408, 415 (6th Cir. 1997)). Under McDonnell Douglas, a plaintiff must first make out a prima 

facie case of discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802). If she meets this 

requirement, the burden shifts to the employer to articulate some legitimate, nondiscriminatory 

reason for its actions. Id. Finally, if the employer sustains this burden, the plaintiff “must point 

out ‘evidence from which a jury could reasonably reject [Defendants’] explanation’” as 

pretextual. Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) (quoting Chen v. Dow Chem. 

Co., 580 F.3d 394, 400 (6th Cir. 2009)). At the summary judgment stage, the district court must 

determine whether there is “sufficient evidence to create a genuine dispute at each stage of the 

McDonnell Douglas inquiry.” Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th 

Cir. 2007) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)). 

A prima facie case of retaliation under the RHA consists of four elements: “1) the 

plaintiff engaged in legally protected activity; 2) the defendant knew about the plaintiff's exercise 

of this right; 3) the defendant then took an employment action adverse to the plaintiff; and 4) the 

protected activity and the adverse employment action are causally connected.” Gribcheck, 245 

F.3d at 550 (Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987) (applying McDonnell Douglas to 

Title VII retaliation claim)). 

To state a prima facie case of retaliation under the ADA, a plaintiff must show that: “(1) 

she engaged in protected activity, (2) defendant took an adverse employment action, and (3) 

there was a causal connection between the protected activity and the adverse employment 

action.” Barrett, 36 F. App’x at 841 (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 

(6th Cir. 2000)). Notably, a plaintiff need not be actually disabled to assert a claim of disability 

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retaliation, but rather “must have a reasonable and good faith belief that the opposed act or 

practice is unlawful under the ADA.” Id. at 840 (citing Johnson, 215 F.3d at 579-580). 

Except for the knowledge component under the RHA, necessary in RHA claims, 

retaliation claims under the ADA and RHA are, effectively, identical: “The [ADA and RHA] 

have a similar scope and aim; for purposes of retaliation analysis, cases construing either Act are 

generally applicable to both.” A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 

(6th Cir. 2013) (citing Andrews v. Ohio, 104 F.3d 803, 806-07 (6th Cir. 1997)); see also

McCormick v. Miami University, 693 F.3d 654, 663-64 (6th Cir. 2012). Additionally, “[t]he 

burden for establishing a retaliation claim under ORC § 4112 is identical to Plaintiff’s burden to 

prove retaliation under the [ADA and RHA].” Moorer v. Copley, 98 F. Supp.2d 838, 845 (N.D. 

Ohio 2000) (internal citations omitted); see also Hopkins v. Canton City Bd. Of Educ., 477 F. 

App’x 349, 359-60 (6th Cir. 2012) (quoting Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 326-

27 (2007)). Because a retaliation claim under the ADA and the RHA are almost entirely 

overlapping, they are examined simultaneously below. 

The parties agree that Gainor filed complaints with the ODE, a protected activity. There 

is also no dispute that Nally was aware of Gainor’s ODE filing. It is the final two elements, 

regarding possible adverse action and a causal connection between the protected activity and that 

adverse action, that are in dispute. To demonstrate an adverse employment action under a 

retaliation claim, “a plaintiff must show that a reasonable employee would have found the 

challenged action materially adverse, which in this context means it well might have dissuaded a 

reasonable worker from making or supporting a charge of discrimination.” Burlington N. & 

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). In determining 

whether certain actions should be considered, “courts look for at least a termination of 

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employment, a demotion in wage, salary or job title, a loss of benefits, or a decrease in 

responsibilities.” Trepka v. Bd. of Educ., 28 F. App'x 455, 462 (6th Cir. 2002). Defendants 

allege that there was no adverse action taken against Plaintiff, claiming that her one- and two-day 

suspensions were reasonable discipline. Plaintiff disagrees, stating that the various disciplines 

taken against her were unjustified. 

Despite the parties’ disagreement over whether the action taken was adverse, there is no 

disagreement as to the material facts relevant to this element. Gainor was disciplined throughout 

the 2008-2009 school year with two separate suspensions, and a clarification letter. During the 

2010-2011 school year, she was not hired for positions for which she applied. The letter did 

nothing more than clarify certain rules concerning Gainor’s employment. Gainor’s one- and 

two-day suspensions were temporary, and though each suspension was without pay, the loss of 

wages was limited to the short suspension periods. It is undisputed that Gainor was not hired for 

certain positions for which she applied, but it is also undisputed that Gainor was placed into a 

different position based on the “bumping rights” provision of the Collective Bargaining 

Agreement, and that Gainor did not file a grievance upon being placed in her current position. 

The letter is not materially adverse to Gainor’s employment. Gainor’s receipt of the 

letter did not result in a diminution of pay, title, or benefits, thereby failing to rise to the level of 

an adverse action. Id. Furthermore, the letter was simply a restatement of what had been 

discussed at the disciplinary meeting, and did not have any material effect on Gainor’s 

employment. 

Additionally, Defendants’ failure to promote Gainor is also not an adverse employment 

action. See Colston v. Cleveland Public Library, 522 F. App’x 332, 339 (6th Cir. 2013) (failure 

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to promote is considered an adverse action under Title VII). When an employee requests a 

“transfer to a new position within the same employer organization [it] must be analyzed as a 

‘failure to promote.’” Sturgeon v. Southern Ohio Med. Ctr., No. 1:10-CV-318, 2011 WL 

5878387, at *8 (S.D. Ohio) (citing Freeman v. Potter, 200 F. App’x 439, 443 and n. 1 (6th Cir. 

2007)). An employer’s decision to deny a lateral transfer, however, “is not an adverse action 

unless it results in a material change of salary, benefits, responsibilities, or prestige.” Id.

(internal citation omitted). Here, Plaintiff fails to adduce any evidence that Defendants’ failure 

to promote Gainor was, in fact, an adverse action. Rather, Gainor was denied lateral transfers, 

and Plaintiff does not explain any way in which these transfers would have materially changed 

Plaintiff’s salary, benefits, responsibilities, or prestige. 

Gainor’s suspensions without pay, however, can constitute an adverse employment 

action. In certain circumstances, it is undeniable that suspension without pay is an adverse 

action. See Burlington N. v. Santa Fe Ry. Co. v. White, 548 US.S. 53, 67 (2006) (a 37-day 

suspension without pay was materially adverse). Shorter suspensions without pay, while not 

nearly as severe as those lasting a month or more, have also been found to constitute an adverse 

action. See Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004) (a 24-hour 

suspension, the equivalent of three eight-hour work days, was an adverse employment action). 

Though Gainor’s suspensions were two separate, short suspensions, they were without pay, 

thereby meeting the standard of an adverse action. 

Even if Plaintiff’s suspensions without pay rises to the level of an adverse action, that 

alone does not establish a prima facie case of retaliation. Plaintiff still has the burden of showing 

the causal connection. Not surprisingly, the causal connection between the alleged adverse 

action and retaliation lies at the heart of the dispute. Defendants claim that the facts point to a 

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lack of causal connection between the ODE filings and any adverse action taken against Plaintiff. 

Conversely, Plaintiff argues that the facts show the opposite, fully supporting her claim of 

retaliation. It is well settled that, “[to] establish a causal connection required in the fourth prong 

[of the McDonnell-Douglas framework], a plaintiff must produce sufficient evidence from which 

an inference could be drawn that the adverse action would not have been taken had the plaintiff 

not filed a discrimination action.” Hicks v. SSP America, Inc., 490 F. App’x 781, 785 (6th Cir. 

2012) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). Temporal 

proximity, though a factor in demonstrating causation, cannot alone establish a causal 

connection. Fuhr v. Hazel Park School Dist., 710 F.3d 668, 675 (6th Cir. 2013) (citing Spengler 

v. Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. 2010). Contrarily, failure to show 

temporal proximity is sufficient for a court to find that there is no causal connection between the 

adverse action and the retaliation. Id. at 676. 

The relevant timeline in determining a causal connection starts with the first ODE filing, 

and spans the 2008-2009 school year. Gainor filed the relevant ODE complaints in April and 

November 2008. On February 12, 2009, three months after the November 2008 ODE complaint, 

the District conducted its first disciplinary hearing with Gainor, which covered her unexcused 

exit from work on January 15, 2009, use of the classroom computer for personal matters, and 

Gainor’s professional conduct. The hearing resulted in a one-day suspension, without pay, in 

early March 2009. On February 18, 2009, Gainor filed a harassment complaint with the District, 

specifically citing retaliation among the reasons for her claim. The District scheduled another 

disciplinary hearing for July 6, 2009, which was held in September 2009, regarding Gainor’s 

insubordination and failure to follow work rules and procedures. That hearing resulted in 

Gainor’s two-day unpaid suspension. In October 2009, Gainor filed a complaint with the OCRC 

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outlining the relevant, allegedly retaliatory events. Gainor accepted a job transfer for the 2009-

2010 school year, but, due to budget cuts, lost that position and was reassigned to the role of 

intervention specialist in June 2010. Her new job provided the same pay rate, but was six hours 

per day rather than her previous rate of seven hours per day. In June 2010, November 2010, and 

March 2011, Gainor applied for other positions, none of which she was offered. None of the 

facts in the timeline are in dispute. 

Defendants argue that Plaintiff has failed to meet her burden of establishing a causal 

connection, stating that Plaintiff has not shown temporal proximity and has relied on conclusory 

allegations. Plaintiff claims that Defendants showed a pattern of investigation and discipline 

regarding Gainor, which, by itself, should establish the causal connection. As this Court has 

already stated, temporal proximity must be shown for a plaintiff to properly demonstrate a causal 

connection. Gainor filed her first ODE complaint in April 2008, was hired at WKHS and started 

work there in August 2008, filed another ODE complaint in November 2008, and was first 

disciplined in February 2009. The Sixth Circuit has found that a causal connection can be 

established based on temporal proximity when the adverse employment action takes place within 

months of the protected activity. Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007); see also 

Randolph v. Ohio Dep’t of Youth Servs, 453 F.3d 724, 737 (6th Cir. 2006) (finding termination 

that occurred six months after filing of workplace sexual assault was causally connected based 

on temporal proximity). Though the three-month period between the November 2008 ODE 

complaint and the February 2009 disciplinary hearing may be sufficient to establish temporal 

proximity, it is not enough, when taken with the facts, to establish a causal connection. 

Even if Plaintiffs were able to establish a prima facie case of retaliation, the 

establishment of a prima facie case is not the final step in the analysis. Rather, the burden shifts 

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to the employer to articulate some legitimate, nondiscriminatory reason for its actions. See 

Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 521 (6th Cir. 2008) (citing McDonnell 

Douglas, 411 U.S. at 802). Defendant has provided legitimate, nondiscriminatory reasons for 

both of Plaintiff’s suspensions. For the March 2009 suspension, Defendant cites Plaintiff’s 

various failures at work, ranging from leaving school without notifying her superiors to using the 

computer for personal use. Regarding the October 2009 suspension, Defendant cites Plaintiff’s 

failure to follow work rules and insubordination. Finally, Defendants articulate that Plaintiff was 

properly considered, alongside other candidates, for the different jobs for which she applied. 

Plaintiff does not dispute that. Additionally, as noted earlier, Plaintiff’s job reassignment was 

done pursuant to the “bumping rights” in Plaintiff’s Collective Bargaining Agreement, and 

Plaintiff did not take any steps to change her job placement. Accordingly, Defendants have 

articulated legitimate, nondiscriminatory reasons for its disciplinary actions, thereby meeting 

their burden. 

Once Defendants have met the second McDonnell Douglas element, the burden shifts 

back to the Plaintiff, who “must point out ‘evidence from which a jury could reasonably reject 

[Defendants’] explanation’” as pretextual. Davis, 717 F.3d 476 (quoting Chen, 580 F.3d at 400). 

To establish that Defendants’ reasons given for the disputed conduct was pretextual, Plaintiff can 

show that the reasons: “(1) [have] no basis in fact, (2) did not actually motivate the defendants’ 

challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Zeidler, 516 

F.3d at 526. Furthermore, Plaintiff must provide sufficient evidence on which a jury could 

reasonably repudiate Defendants’ reasons, thereby determining that Defendants, “did not 

honestly believe in the proffered nondiscriminatory reason for its adverse employment action.” 

Id. at 526 (citing Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001). As noted 

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earlier, Plaintiff lays out her advocacy actions (i.e., filing her complaints with the ODE) and 

states that the “egregious discipline” of the first suspension was not in relation to Gainor’s 

performance and behavior, but had “everything to do with her advocacy that led to the school 

being investigated by the ODE.” (Doc. 25 at 15). Plaintiff’s argument, however, does not 

address any alleged pretextual basis for Defendants’ actions. Plaintiff also fails to provide any 

evidence from which a jury could find a pretextual reason for Defendants’ actions. Plaintiff does 

not rebut any argument concerning Defendants’ legitimate, nondiscriminatory reasons for its 

actions, thereby failing to prove that Defendants’ actions were pretextual. 

Based on the foregoing, Defendants’ motion is GRANTED on Count II, Plaintiff’s 

retaliation claim. 

C. Intentional Infliction of Emotional Distress (Count III) 

Count III of Plaintiff’s Complaint is a claim of Intentional Infliction of Emotional 

Distress (“IIED”). As a threshold matter, Defendants argue that they are immune from suit 

based on political subdivision immunity. 

1. Political Subdivision Immunity 

 In Steinbrink v. Greenon Local Sch. Dist., the Second District Court of Appeals held that 

Ohio school districts are political subdivisions under § 2744.01(F) and so are generally entitled 

to political-subdivision immunity under § 2744.02(B). Steinbrink v. Greenon Local Sch. Dist., 

2012-Ohio-1438 at ¶ 18 (Ohio Ct. App. Mar. 30, 2012). The Court went on to hold, however, 

that immunity was not available because of R.C. § 2744.09, which exempts from immunity “civil 

actions by an employee . . . against his political subdivision relative to any matter that arises out 

of the employment relationship between the employee and the political subdivision.” Id. at ¶ 25; 

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see R.C. § 2744.09(B). The Court noted that the Ohio Supreme Court had recently held that 

“[a]n employee’s action against a political subdivision employer arises out of the employment 

relationship between the employee and the political subdivision within the meaning of R.C. 

2744.09(B) if there is a causal connection or a causal relationship between the claims raised by 

the employee and the employment relationship.” Steinbrink, 2012-Ohio-1438 at ¶ 24 (quoting 

Sampson v. Cuyahoga Metro. Hous. Auth., 966 N.E.2d 247, Syllabus (Ohio 2012)). The Court 

went on to find such a causal connection between the plaintiff’s employment as a football coach 

and his claims of defamation, intentional infliction of emotional distress, and tortious 

interference with contract. Id. at ¶ 25. 

Plaintiff similarly brings a civil action against her political-subdivision employer, and 

there is no dispute that her claim of intentional infliction of emotional distress bears a causal 

relationship to the employment relationship. Because the Plaintiff’s claim of intentional 

infliction of emotional distress arises from her employment relation with Defendants, they are 

not entitled to political-subdivision immunity with respect to that claim. Defendants cannot, 

therefore, avail themselves of the defense of political subdivision immunity on Plaintiff’s IIED 

claim. 

2. Intentional Infliction of Emotional Distress 

Looking specifically to the merits of Plaintiff’s IIED claim, the Court must consider the 

elements: “1) that Defendant either intended to cause emotional distress or knew or should have 

known that actions taken would result in serious emotional distress to Plaintiff; 2) that 

Defendants' conduct was so extreme and outrageous as to go beyond all possible bounds of 

decency and was such that it can be considered as utterly intolerable in a civilized community; 3) 

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that Defendants' actions were the proximate cause of Plaintiff's psychic injury; and 4) that the 

mental anguish suffered by Plaintiff is serious and of a nature that no reasonable person could be 

expected to endure.” Paquette v. City of Mason, Ohio, 250 F. Supp. 2d 840, 846-47 (S.D. Ohio 

2002); see Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506 

(1997).13 Defendants may be liable only when Plaintiff demonstrates that their conduct was so 

outrageous that it satisfies the four prongs of an IIED claim. 

Plaintiff fails to provide sufficient evidence to demonstrate that she, in fact, suffered 

emotional distress. The only evidence Plaintiff cites in support of her claim is the psychological 

treatment she sought, which, based on her deposition, falls in line with a long history of 

psychological care. (Gainor Dep., Doc. 18 at 257-289). Plaintiff also claims that Defendants 

“continued to subject her to emotional distress” by continually placing her in Behavior Learning 

Center positions. (Doc. 25 at 19). Finally, she argues Defendants intentionally acted through 

unwarranted disciplinary procedures. (Id.). Plaintiff does not provide any additional evidence 

on which she bases her emotional distress claim. Mere psychological counseling, tangential to 

Plaintiff’s instant claim, internal transfer, and discipline, are not ipso facto sufficient to support 

an IIED claim. Even viewing the evidence in the light most favorable to Plaintiff, it is clear that 

she has failed to establish a claim for IIED. Therefore, Defendants prevail on this claim. 

3. Paliotto’s Liability 

Defendants argue that Paliotto is granted immunity under Ohio Rev.Code Ann. § 

2744.03(A)(6)(a) and 2744.03(A)(6)(b). That section states, in relevant part: “the [political 

subdivision] employee is immune from liability unless one of the following applies: (a) The 

                                                            

13 See also Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App. 3d 40, 61 (2009); see Moore v. Impact 

Community Action, 2013 WL, *4 (Ohio Ct. App. July 23, 2013). 

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employee's acts or omissions were manifestly outside the scope of the employee's employment or 

official responsibilities; (b) The employee's acts or omissions were with malicious purpose, in 

bad faith, or in a wanton or reckless manner.” ORC § 2744.03(A)(6)(a), § 2744.03(A)(6)(b). 

 Looking first at § 2744.03(A)(6)(a), Defendants state that Paliotto’s actions were within 

the scope of her employment and official responsibilities, an argument that is uncontested by 

Plaintiff. The evidence presented indicates that the various steps taken by Paliotto over the 

course of Gainor’s employment were well within the scope of her employment and official 

responsibilities. The material facts that speak directly to Paliotto’s involvement in the matter are 

not disputed, further supporting Defendants’ request that Paliotto be granted summary judgment 

(or perhaps, more properly, dismissed on this claim). 

Turning to § 2744.03(A)(6)(b), Defendants’ allege that Paliotto did not act with malicious 

purpose, in bad faith, or in a wanton or reckless manner. In opposition, Plaintiff states that 

Paliotto acted maliciously. “‘Malice’ is the willful and intentional design to injure or harm 

another, usually seriously, through conduct that is unlawful or unjustified.” Otero v. Wood, 316 

F. Supp. 2d 612, 629 (S.D. Ohio 2004); see Wright v. City of Canton, 138 F.Supp.2d 955, 967 n. 

8 (N.D.Ohio 2001) (citing Cook v. City of Cincinnati, 103 Ohio App.3d 80, 658 N.E.2d 814, 821 

(1995)). Plaintiff points to Nally’s deposition, drawing attention to his statements that Paliotto 

directed him to investigate Plaintiff following her ODE filings and relevant IEP meetings. (Nally 

Dep., at 71-72). Additionally, Plaintiff argues that, because Paliotto was in charge of disciplining 

Gainor, when it was within her discretion, and could control the degree of discipline, she acted 

maliciously. (Doc. 24 at 20). Plaintiff’s claims are weak, and the facts relevant to this claim are 

not disputed by either party. Construing the evidence in the light most favorable to the Plaintiff, 

there is nothing that demonstrates Paliotto’s conduct was malicious. 

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Based on the foregoing, Defendants’ motion is GRANTED on Count III, Plaintiff’s 

claim of Intentional Infliction of Emotional Distress. 

V. CONCLUSION

 For the reasons set forth above, Defendants’ Motion for Summary Judgment is 

GRANTED. This case is hereby DISMISSED. 

 IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 United States District Court Judge 

DATED: December 13, 2013 

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